A Guide to Lawyer-Assisted Family Dispute Resolution

(upbeat music) - Hi, and welcome back to the CE Family Law Conversation podcast. I'm Sunaz Nemi-Roshan. I am one of the directors and an accredited family law specialist at CE Family Law. I'm here today with Alina Climent, a family dispute resolution practitioner at Bayside Mediation. Alina has been at Bayside Mediation for eight years. Prior to that, she completed a law degree and worked as a family lawyer. Alina has two boys, aged 15 and 11, and in his spare time, she spends time with her boys, but also playing with her pet dog. Welcome, Alina. - Hello, thanks for having me. - Thank you, thank you. Well, let's start, Alina. Can you please provide our listeners an explanation and your view on the role of FDR and the process involved in FDR, which is family dispute resolution? - Yeah, sure, we'd love to. I love talking about this. So FDR is designed to give the control and the power back to the client, back to the people who are separating. So the first thing I love to talk about when I meet people is to explain to them that they are always 100% in the driver's seat when they're in my room. They decide their gender. They decide on any agreements. We're never there to judge them. We're never there to be overly directive with where the conversation goes. Our role as mediators is to provide a process for the two of them to have their own conversations about their children, about their finances, which is a very empowering process. We are neutral, impartial. We manage the conversation, we interpret, we reframe, but we're not there to, in any way, be prescriptive or to put in place any outcomes. It's always up to the parties themselves where it goes. There are some different lenses for parenting and finances, obviously. So, you know, with parenting conversations, whilst I explain that I'm neutral and impartial, I do allow myself to unapologetically align with the best interests of the children. I do explain that I am the voice of the children, I am there to help the parents understand the world from the child's perspective, understand the needs of the children. So, help parents understand the different ages. There might be some development to the appropriate parenting arrangements that are better, suited to that age group. With financial conversations, as you note, and as whether they're having a conversation around their own kitchen table, or whether they're sitting in a mediation room with me, or whether they're in front of a judge with you or you're negotiating with you, we're always following a prescribed process. So, similarly, you know, we explain the process of identifying assets and waiting contributions and waiting future needs, and explaining that there is a just and equitable requirement in terms of agreements that are made, but it is always up to them. Now, what's interesting is we would slow the process down and give people plenty of opportunity to go get legal advice in the background in between sessions. So, there's usually a check and balancing process going on with your legal practitioner if you feel you need that, but we're not there to in any way provide legal advice. - Thank you, that was a great summary. What's the difference between what you've just explained, family dispute resolution, and lawyer facilitated family dispute resolution? - Yeah, okay, so as I mentioned before, even when lawyers are not sitting in the room with you, you can and should at any time get some legal advice, so there are always that legal assistance in the background. Legal assistance mediation, when we use that term, what we really mean is when the lawyers are sitting in the room with you. And so, it's a bit of a different process in the way that there's usually a bit more preparation required, and the lawyers are sort of running that preparation, helping you with all the discoverable documents and whatever, the format can be a bit different in the sense that I find that when lawyers are present, it's a longer, it's usually half a day or a whole day where we try to kind of solve the whole puzzle in the one day, rather than it being broken up into those shorter sessions. I find that often when lawyers are in the room, they are drafting their agreement as we go. So at the end of the day, if you do reach an agreement, you have something ready to sign. So it's efficient from that perspective. Those are sort of the main differences. So physically in the room with you, I do like to explain to the lawyers that work with me that it's still FDR, the client is still very much in control of the conversation. You're just there for legal advice, not to run the conversation for them. - Just in relation to that, when you're doing the standard FDR, not the lawyer facilitated FDR, at the end of that, do you, for parenting, I know that you can put a parenting plan together. What about financial matters? Can you explain the difference between the process involved if parties have reached an agreement from your perspective? - Sure, so as you say, for parenting mediations, we just write notes in a whiteboard and which can be signed on the day. And I do like that because if I allow parties too much time to go home and reflect, there's too much towing and frowing. So parenting plan is anything in writing with a date, a name and a signature so that can be produced on the day, not legally binding, a goodwill agreement. Financial conversations, obviously, we do encourage everybody to then make their agreement legally binding. So mediated agreements in and of themselves are not legally binding. Then the parties have to decide whether they want to do consent orders or a binding financial agreement to make their agreement legally binding. And they've got options. They can take that agreement to a lawyer. They can have a guy doing it themselves in terms of lodging consent orders with a court. So they're gonna do consent orders or a binding financial agreement, which of course requires them to have independently legal advice. So I always say the hardest part is getting to the agreement, documenting that once we're there is the easy part and they've got those two options of consent orders or a binding financial agreement. They can be done by a lawyer themselves, they've got options. - Thank you for that. And in your experience, what are the most common scenarios where lawyer assisted FDR is valuable? - Yeah. - For example, when is it valuable in parenting matters and when is it valuable in financial matters? - Okay. So perhaps now could be a good time to mention the timing. So what I think it is important for people to understand is that we can do FDI at any stage of the process. So I love working very, very early when people just decide to separate. That's my favorite time because I feel like I can make the most positive impact. If you're already issuing court proceedings, what people don't know, need to know, is that the first order is usually back to FDR. So if it's court-ordered, then lawyers are always present. They need to be present. You're running a legal case. You need to have your legal representatives helping you. If you're doing it at the first instance, if you're doing mediation early before you issued your court proceedings, then some particular examples. In the parenting situation, we need to parents to have capacity to be child-focused. So we need the parents to be able to understand if there are any risks, except if there are any risks, be prepared to actively manage those risks. So when there are risk factors, mental health, family violence, substance abuse, it can be difficult and parties often need legal representatives to help them, be child-focused and really understand that there's a staged process in place to eliminate the risk or to scaffold the children. There might be a disbalance of power that I can manage as an FDR peer a lot, but there's sometimes is such a disbalance of power that we can't manage, in which case we really like to have the vulnerable party represented. So that's sort of my main, I would say the capacity to be child-focused and risk factors are the two main ones that pop it to my mind for parenting. Financial matters, it's things around complexity and size of the asset pool. So my rule of thumb and it's gonna sound ridiculous, but we're looking in the millions, we're working with middle-class Melbourne. So an asset pool of four, five million, most people can manage that because that's usually just like a family home. When we've got complexity or really large asset pools with very complex corporate structures. complex tax implications, then it's a really good idea to be legally represented for sure. If we find a party who's very financially illiterate, so they haven't really had to do, or by choice they chose not to be in any way involved in financial management during the relationship, it can be a massive culture shock to all of a sudden be dealing with numbers. So upscaling around that could be really helpful. Go ahead. - You also, if you can explain to our listeners, when it comes to discovery, you're involved in that process as well to some extent, aren't you? Where, when you're working out the assets and liability is, if one party isn't, for example, sure about something, then you can guide them as to what they can ask, or you can ask the other party to provide some documents during this process? - 100%. So that was my, the next thing I was about to mention is that discovery and non-disclosure of assets. So we as mediators, we have a bit of a different lens, and I'd love to hear more from you about how you guys manage discovery. But ultimately, we leave it a little bit up to the parties. I explain that there is a legal duty, like a duty of disclosure, so they must make full and frank financial disclosure. I leave it up to them to request the documents they need to make fully informed decisions. So I don't personally request documents. I put the onus a little bit back on the party to say, well, you're not sure about those shares, you've never seen, you don't know. So perhaps, you know, I might prompt, I might coach you the background and say, perhaps you might like to request a statement. So, you know, super-animation statements, share statements, income slips, where people have separate bank accounts and have no personal knowledge experience insight, transparency into the other parties' financial world. Really good idea to ask for some documents, but I leave it, you know, I don't stop my process if they don't want to, where I do stop my process is if a document has been requested and the other party has refused to disclose, then we say stop. Let's get some legal advice. Let's get the lawyers to help manage the discovery. When you feel you have a level of certainty with their valuations, with the history of contributions, with the asset pool itself, then come back to mediation. And that can be a process. So it doesn't have to happen off in one session. It can happen over a number of sessions. Is that correct? That is absolutely correct. And that's 99% of the time how we prefer to work is shorter sessions spread across weeks, if not months, so that people have the opportunity and the time to review documents, to get legal advice, to consider options, to speak to brokers about finance, to speak to accountants about tax implications. That's why I prefer shorter sessions, multiple sessions, rather than a big massive all day session, which is a very good idea if you've got all your ducks lined up. But usually, if I'm working with people in those earliest stages of separation, they don't have their ducks lined up, and they need time for that. That's also for financial matters. The parenting matters you can do it in half the day or a full day. Parenting we normally run across four hours. Again, up to the clients, two, three, four hours. There are some situations where we recommend a little bit of homework, where it might be, for example, they can't agree on what school to send their children to, and there's two, three, four schools under consideration. Well, we might agree on a list of criteria that we're going to assess the schools, and both parents need time to go and do school tours and make their own inquiries. There might be some diagnoses that need to be done for the children, where one parent goes, I'm worried. I want to have them screened. And the other parent doesn't agree. So once we get them to agree, they might need to then go and spend up some time, running through their process. And then they come back once we have some certainty around, okay, well, the child is diagnosable, not diagnosable. With that lens in mind, perhaps the parenting arrangements need to change. What do we need to do as parents to meet the needs of a children? So absolutely, parenting can be done across multiple sessions. - Yeah, I find in my practice that happens a lot, is I have clients who their children are quite young, and they have difficulty in having a parenting plan or an order where it deals with everything until the children are 18. And I sometimes say to them, well, you don't necessarily have to do that. You can go to FDR and have a planning place for the next six months, and then go back after six months to revisit that plan, and then look at it for the next six months, and then you keep doing that. So it's not that they have to make a decision about the next 18 years, especially when they've got younger children, more about doing what's right for the children. - Well, I had this conversation with a client this morning, interestingly, exactly on that point, with the kids are young-ish, and his lawyer had written to her saying, "Yeah, but we'll do four, 10 for the next couple of years, but in year 2027, we're doing 50/50." And obviously that-- - It's such a hard decision to make when you don't know how the children are going to cope. The development, the schooling, it's just very difficult. - Yeah, we never know. And often in the early stages, those considerations are happening whilst they're still under the same roof. They haven't actually even physically separated. So nobody really knows how the children will adjust, how the parents will adjust. So in those cases where I've got younger children, we put in place, I recommend, that they put in place parenting arrangements that make sense today, given the children's current developmental needs, their current attachments, with a little idea that we can, and we can and we should review parenting arrangements as the kids get older. And as the parents get used to living across, in this new reorganized family structure. So absolutely my favourite way of working with parenting, the younger children is in that stage way. And take the pressure off the parents to, as you say, solve the whole world until they're 18, it's impossible. We never know. There might be new partners, new children, while somebody might need to go and relocate, interstate, internationally. So we like to make parenting decisions that are meeting the current circumstances of the family and the current developmental needs of the children. And then they can come back. So yeah, interim arrangements are best for younger children, for sure. - And what happens in a situation where, you know, as a legal practitioner, I, in both parenting and financial matters, I advise my clients to go and see if they can sort it out themselves by going through FDR. But in a situation where say they come and see you and they go through the process and they just can't reach an agreement, what happens in parenting matters from your perspective and what happens in financial matters? - Okay, so if, I mean, all I can really do is issue a Section 60 I certificate. So if we. - What is that, Alana? - So a Section 60 I certificate, I usually describe it as a piece of paper that gives you a green light to go to court. That's how I would colloquially explain it to people. So, which essentially is what it is, you know, we are sort of gatekeepers in the sense that my job is to keep them very much out of court. If I fail to consider it a fail, and if I fail in that endeavor, then it is a document in prescribed wording all we can do is highlight a subsection. So we can't write on it. We can't explain, you know, why it didn't work. We can just highlight one of the sub paragraphs which are usually around one party didn't attend or they both made a genuine effort and couldn't get there or it wasn't appropriate to continue or one party didn't make a genuine effort. Now there are, and perhaps your better place to comment on this, there are supposed to be serious consequences to a Section 60 I certificate that either says that a party refused to attend the mediation or that a party didn't make a genuine effort. There are supposed to be potential cost consequences. I'm not sure if that's actually a filtering through the system, but it is supposed to be relied upon down the track if you're end up libygating to recover some of your costs. Yes and no. It is there and they deterrent, I think, to ensure that people do go through. the process of FDR and trying to resolve things before litigating, but in practice, in particular in parenting matches, costs are quite rare. So it is a deterrent, and it does help parties attempt to resolve matters outside of the court system. And sometimes it's interesting, because if I have a reluctant party to, sometimes the issuing of the certificate that says they didn't attend gets them into the process. So because they realise that, oh no, this is serious. This is happening. So it is required to be attached to an initiating application, which is why lawyers ask for it. But as you say, it is often used to get people into the process or as a signal, things are getting serious. And what about financial matters? So if we again, there's a bit of confusion. Now, lawyers do often ask me for a section 60 I for financial matters, which I have a little issue. I know you're not supposed to, you're not supposed to file them, but lawyers like I, my experience, lawyers are often asking me for section 60 I certificates for a definite, which I do, because again, it's just simply evidence that they've tried. They've really genuinely tried, and we just couldn't get there. Again, so then they would engage and instruct us of this that are most often to, perhaps there's a point of stuckiness. It might be around non-disclosure of assets. It might be around the kind of ground valuations. So I find people often come back. I find that they get legal advice. They might even issue court proceedings. But often they come back to close the deal out when they're ready, because if I'm issuing a certificate, there's a point of stuckiness. So if lawyers can help, then unstuck, is that a word? Then it sort of paves the path for further mediation down the track. And what about-- so if a client asks me, for example, how do I prepare for this FDR? What do I need to do? What is the best thing to advise from a lawyer's perspective, apply before they come and see you? Interesting, OK. But what parenting and financial again-- OK, OK, and I think I will talk about them separately, because they are quite different. So the first thing I will say is that I don't love parties to be overly prepared for the intake interview, because the first step in an FDR process is a confidential individual intake interview. Even for financial matters, I often like to see what they know off the top of their head, because that can often be quite instructive to me where I need to upskill and support them. So if they come to me and they can't answer any of my questions, they don't know where the mortgage is. They don't know where the asset pool is. It's important for me to know that they don't know. So do you know what I mean? So that would be the first thing. If you're engaging in FDR early on in those very early stages of separation, I would say, just go. Go to the intake interview and then trust the process, because the preparation will be-- I will make them a list of homework. I will create this is what you've got to do to prepare for the joint session. Having said that, obviously, when we are dealing with financial matters, there are obvious things that we talk about-- assets and liabilities. What are things worth? We might analyze the history of contributions. What things were worth in the beginning of the relationship. Look up your super-newation statement. Look up what your car might be worth on Red Book. Just as a-- not as a final-- I'm committing to this figure evaluation, but just as a approximation that we can use to brainstorm to crunch numbers. Because I will be asking you questions around your assets, liabilities, and contributions. So for parenting matters, again, one thing I would love lawyers to tell their clients for parenting matters is do not ask your children who they want to live with, ever. One way. So it's a very difficult-- we are required to take into consideration their wishes. But parents can't really ever ask them without putting them into impossible position. So if we're not sure, the best process is a child-inclusive mediation where they get a voice in the conversation in a child-appropriate way. And we can talk about that, perhaps, in a different forecast. I won't go into that now. So for parenting matters, if we have things like, again, I think I might have mentioned schooling earlier, there might be some prep required. I've been to three school tours. And this is what I like about this school. But usually, for parenting, unless there are, again, risks-- if there are risks, then we might need to talk the child protection. We might need to put in place some intervention orders. But again, we can screen for all that at the intake interview. So if a parenting matters, I don't think any prep is required. But for financial matters, it might be a good idea to put together a spreadsheet of the assets and liabilities as you believe them to be as a starting point for conversation. What about in a situation, for example, from my perspective, again, when if there are intervention orders or there are risk issues, and we send them to family dispute resolution, what systems do you have in place? And when do you say, well, this is not appropriate for FDR, or it is appropriate for FDR, and the process involved with respect to that? OK, so the FDRP is responsible for screening for appropriateness. It's the most important part of the intake interview, and that's why it's designed that way, so we can screen for risk. So the presence of family violence dynamics in and of itself doesn't make a mediation not appropriate. And there's been a bit of a cultural shift I feel in the last few years, even with the government fund of relationship centers used to just go, oh, not appropriate, family violence. And now we understand that, unfortunately, it's so prevalent in so many families who end up separating that it is a good idea to have a go, but do so in a way that makes everybody feel like they've got safe place. So what are the ways in which we can do that? We can do shuttle where people are physically in the office with me, but in separate rooms online. One party might be physically in the office with me, and one party might be at home with a support person. So presence of support people with the agreement of the other side, of course, but we can do things like that where we physically separate them. I often sometimes really like where one party might be physically in the room with me, and the other party's on the screen, but they're facing me. So they're hearing each other, but not looking at each other. I do find online, I can miss a lot of those cues. So I would often prefer to have the vulnerable party, physically in the room with me, so I can read the body language and support them appropriately. But ultimately, our role is to try to balance out that imbalance of power. So we would screen and discuss with the parties, what is, how do they feel? Do they want to have a go? Even if family violence is present because, this is really stuck with me. I once went to a conference, and I heard a judge talk about it, and he said, "The most harrowing experience, "what he found most difficult being on the bench, "is watching a victim of family violence "being cross-examined by the barrister of the other side." It's not an experience you'd willingly apply. It's to be avoided if possible. And so in mediation, I feel like we can support them better. We can have lawyers present. We can have support people present. We can have parties in separate rooms. And we can get done quickly. We can preserve the asset pool as much as we can. Well, it's not like we have to be, the lawyers have to be physically there. The client might just want to run something past. He's all her lawyer about a parenting matter or a financial matter, and we can just be in the background. Yeah, exactly. So there's lots and lots of ways of managing it. We have a lot of success managing those family violence and amics theories, obviously a tipping point, where I would go that it's just not appropriate. In which case, their only option is to litigate. Or perhaps have lawyers negotiate in the background by letter on their behalf. - Well, thank you. That was very informative. I would love to do another podcast with you about the child inclusive. - Yeah, that might be a really good idea. - That sounds very interesting and something that I could learn from. So maybe we can have a chat afterwards about that. That's thank you, Alina, for joining us today. It has been an absolute pleasure. with pleasure having you. - Thank you for having me guys and hopefully do it again soon. - Thanks. - Thank you. - Bye.